1. Scope of application
The following
General Terms and Conditions of Business (hereinafter referred to as
the “General Terms & Conditions of Business”) shall apply to all
delivery of the goods ordered from Alpha Orthotics
Corporation™ (hereinafter referred to as “Alpha Orthotics”) to individual
customers to the extent that no prior written agreement to the
contrary is reached.
2. Offers, the conclusion of an agreement and sales brochure
2.1
Any offers
made by Alpha Orthotics and any sales brochures produced by Alpha
Orthotics shall be subject to modification and shall constitute an
invitation to the customer to place an order with Alpha Orthotics.
2.2
The order
placed by a customer shall constitute a binding offer which Alpha
Orthotics may accept within four weeks from the date of its receipt by
issuing a written confirmation of acceptance of the order or by making
the delivery.
2.3
The agreement
shall come into existence when the customer receives from Alpha
Orthotics the written confirmation of acceptance of the order or when
product is shipped by Alpha Orthotics.
3. INSTRUCTIONS IN RELATION TO CANCELLATION
3.1
THE RIGHT TO MAKE A CANCELLATION.
THE CUSTOMER SHALL FOR A PERIOD OF ONE
MONTH BE ENTITLED TO MAKE A CANCELLATION IN A WRITTEN FORM (E.G. BY
LETTER, FAX OR E-MAIL) WITHOUT STATING ANY REASONS OR BY RETURNING THE
GOODS. THIS PERIOD SHALL NOT BEGIN TO RUN BEFORE THE DATE ON WHICH THE
GOODS ARE RECEIVED BY THE CUSTOMER AND ITS RECEIPT OF THE INSTRUCTIONS
IN RELATION TO CANCELLATION IN A WRITTEN FORM WHICHEVER EARLIER. IN
ORDER TO MAKE A CANCELLATION WITHIN SUCH PERIOD, IT SHALL BE SUFFICIENT
TO DISPATCH THE NOTICE OF CANCELLATION OR THE GOODS IN DUE TIME. THE
NOTICE OF CANCELLATION SHOULD BE SENT TO:
Alpha Orthotics Corporation
434 Greenwood Beach Road,
Tiburon, CA 94920;
Phone: 001 415 389-8980;
Fax: 001 415 389-1063;
email: info(at)alphaorthotics(dot)com
3.2
CONSEQUENCES OF CANCELLATION.
IN THE EVENT OF A VALID CANCELLATION THE PAYMENTS AND
DELIVERIES MADE BY BOTH PARTIES SHALL BE RETURNED. IF THE CUSTOMER IS
UNABLE TO RETURN ALL OR PART OF THE DELIVERY MADE TO IT, OR IF IT IS
ONLY ABLE TO RETURN SUCH DELIVERY IN A DETERIORATED CONDITION, IT SHALL
PAY APPROPRIATE COMPENSATION TO ALPHA ORTHOTICS.
3.3
RETURNS.
If for any reason the customer is not satisfied with its
purchase, it may return the goods for exchange, refund or store credit
subject to the following conditions:
THE COSTS OF SUCH RETURN SHALL BE BORNE BY THE
CUSTOMER, IF the VALUE OF the GOODS TO BE SENT BACK DOES NOT EXCEED
$500 OR if, IN A CASE WHERE THE GOODS TO BE RETURNED COST A HIGHER
PRICE, THE CUSTOMER HAS NOT PROVIDED CONSIDERATION OR MADE ANY PARTIAL
PAYMENT ON THE DATE OF THE RETURN, UNLESS THE GOODS AS DELIVERED DO NOT
SUBSTANTIALLY CORRESPOND TO THE GOODS ORDERED
Returned goods must meet the following requirements:
- must be unworn, unwashed, unaltered and not damaged
- must be accompanied by original receipt
- must be sent in its original packaging
- must be sent within 14 days from the date of delivery
- must reach Alpha Orthotics’s specified return address within 30 business days
A return that does not conform to the above requirements
will be sent back at the customer’s cost upon the customer’s written
request. Otherwise, Alpha Orthotics reserves the right to liquidate the
return without attribution to the customer.
4. Prices and payment
4.1
The prices
payable shall be those set out in the relevant current price list.
Prices are in U.S. Dollars. Payment may be made by Certified Check,
Bank Check or Money Order. We do not accept cash payment by mail. All
orders are subject to shipping and handling charges.4.2
We accept credit cards payment (Visa, Master, American Express,
Discover). Payment may be made by Certified Check, Bank Check or Money
Order. We do not accept cash payment by mail. All orders are subject to
shipping and handling charges.
4.3
Prices do not include taxes, duties or other charges.
The customer warrants to Alpha
Orthotics that its order conforms to all applicable local and
international laws, regulations and rules, including without
limitation, tax laws, custom duties, consular fees, import/export (or
re-import/export) controls, and the customer is solely responsible for
all applicable taxes and custom duties assessed on the orders and
shipping and handling charges, by the destination authority or other
applicable authorities within or without the United States.
4.4
Alpha
Orthotics shall ensure that any foreign packaging, weighing and customs
regulations are complied with, to the extent that the customer
provides precise information in relation hereto in good time. Any
additional costs associated herewith shall be borne by the customer.
4.5
To the extent
that no prior written agreement to the contrary is reached, the
invoices of Alpha Orthotics shall be payable once they are received by
the customer and shall be settled immediately and in full, but within
ten days from the date of receipt at the latest. The place of payment
shall be the place of business of Alpha Orthotics indicated on the
invoice.
4.6
Should the
customer’s payment be delayed, Alpha Orthotics shall be entitled to
demand default interest in the amount of 5 % per annum or the highest
rate of interest permissible under applicable law. Alpha Orthotics shall
moreover be entitled to assert any other claims under applicable law.
4.7
The customer
shall not be entitled to withhold payment pursuant to any counterclaims
or set off, unless such are undisputed or ordered by a valid and final
judicial or arbitral determination.
5. Delivery deadlines and force majeure
5.1
To the extent that the customer does not comply with
its obligations to co-operate or does not punctually make any required
advance payments, delivery deadlines shall be rescheduled accordingly.
In the event of a breach by the customer of any obligation to
co-operate, and in particular in the event of non-acceptance of the
goods, Alpha Orthotics shall be entitled to demand compensation for any
loss suffered and additional expense incurred as a result hereof.
5.2
In the event of any delays in delivery due to
unforeseen events which are beyond the control of Alpha Orthotics (e.g.
due to a strike or lock-out, a disruption of operations or a delay in
the procurement of materials as the result of a late delivery by any of
our suppliers for which Alpha Orthotics is not responsible – which
provision shall also apply to the suppliers of Alpha Orthotics –,
civil war, acts of terror, natural disasters, bans on import and
exports, energy shortages or shortages of raw materials), the agreed
delivery deadlines shall be extended for the duration of the unforeseen
event causing the delay. Should it prove in the long term impossible
for Alpha Orthotics to make the delivery as a result of force majeure,
but for a period of four months at least, Alpha Orthotics shall be
released from its obligation to make such delivery. In such an event the
customer shall be entitled to withdraw from the agreement and a refund
of purchase price paid, if any.
6. Place of performance, shipment and transfer of risk
6.1
To the extent that
nothing is agreed to the contrary in writing, the place of performance
shall be the place of business of Alpha Orthotics in Tiburon,
California.
Deliveries shall only be insured at the express request of the customer and at its expense.
7. Retention of title
7.1
The delivered goods
shall remain the property of Alpha Orthotics until they are paid for in
full. In the case of an open account, each respective demand for
payment of an outstanding balance shall constitute a lien on the
delivered goods.
8. The rights of the customer in the event of defects
8.1
No assurance is given as to the accuracy, effectiveness
or fitness for the customer’s personal needs of the goods. Should the
goods prove to be defective, the customer may, acting reasonably and in
accordance with Alpha Orthotics’s published specifications for the
goods, at its discretion demand that any defect is repaired or
replaced, at the option of Alpha Orthotics and subject to applicable
charges of Alpha Orthotics. THE MERCHANDISE AND RELATED SERVICES
OFFERED FOR SALE ARE PROVIDED “AS IS”. NO WARRANTIES OR REPRESENTATIONS
OF ANY NATURE ARE EXTENDED NOR CREATED BY COURSE OF DEALING, COURSE OF
PERFORMANCE OR TRADE USAGE, INCLUDING, BUT NOT LIMITED TO, EXPRESS OR
IMPLIED WARRANTY, WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE OR WARRANTY OF NON-INFRINGEMENT.
8.3
The purchaser shall be entitled to a refund of
purchase price paid (if any) or reduction of price for the defective
goods, if the defect is material and Alpha Orthotics elects not to
repair or replace the goods.
8.4
The customer shall not have any rights as the
result of defects which are caused by normal wear and tear or by any
treatment of the goods by the customer or by third parties which does
not comply with any one of the stipulations set out in the instructions
for use or other written recommendations provided by Alpha Orthotics
(e.g. improper use, maintenance or storage), or which are of a purely
visual nature.
8.5
Any claims which may be asserted by a customer shall expire one year from the date on which the goods are delivered.
8.6
Should a consumable item (e.g. a brace) have an
average life cycle which is shorter than the prescription period in
accordance with this clause (e.g. three months for a brace), the rights
of the purchaser which arise pursuant to any defects must be asserted
within the average life cycle. Consumable items shall not be returned
but limited to the exchange of the consumable item.
9. Liability
9.1
Subject to Section 9.2, Alpha Orthotics shall have unlimited liability for acts of willful misconduct and gross negligence.
9.2
Unless otherwise provided herein,
Alpha Orthotics’s liability shall be limited to the price of the goods
sold by Alpha Orthotics which give rise to the damage.
9.3
Liability for indirect,
consequential, special and unforeseeable damage, such as, by way of
example only, damage resulting from defects, lost profit, the loss of
an opportunity to make savings and financial loss pursuant to the
claims of third parties shall be excluded EVEN IF ALPHA ORTHOTICS SHALL
HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR
NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN
THE CONTROL OF ALPHA ORTHOTICS.
9.4
Any liability other than the
liability provided for in these General Terms & Conditions of
Business shall be excluded irrespective of the legal nature of the
claim which is asserted.
10. Intellectual property rights
10.1
Alpha Orthotics reserves without limitation all
proprietary rights, industrial property rights and copyright in
illustrations, ideas, know-how, trade secrets, drawings, technical
specifications and other documentation (hereinafter referred to as
“documentation”). Third parties may only be granted access to
documentation once Alpha Orthotics has given its prior written consent.
10.2
Should a third party assert any valid claim
against the customer for infringement of a valid U.S. registered
copyright, trade mark or patent by goods delivered by Alpha Orthotics
which have been used in accordance with the agreement, Alpha Orthotics
shall at its discretion and at its own expense acquire a licence to
use the relevant goods, or modify the goods in such a manner that a
breach of a protected proprietary right no longer exists, or exchange
the goods. To the extent that it is not possible or reasonable for
Alpha Orthotics to do so, rights to withdraw from the agreement or to
reduce the contract price shall be available to the customer. Claims
for compensation shall only exist in accordance with section 8. Any
claims which may be asserted by the purchaser shall expire within the
period set out in section 8.5.
10.3
The obligations of Alpha Orthotics pursuant to
section 10.2 shall only apply to the extent that the customer
immediately informs Alpha Orthotics in writing of any claims asserted
by third parties, does not accept that it bears liability for the
breach and all rights in relation to the taking of measures to defend
and settle such claim are reserved to Alpha Orthotics. Should the
customer cease using the goods on the grounds that it wishes to
mitigate damage or for any other material reason, it shall notify the
third party of this fact so that no acknowledgement of a breach of a
protected proprietary right is associated therewith.
10.4
The customer may submit no claim to the extent
that it itself is responsible for the breach of a protected
proprietary right, or to the extent that the breach of a protected
proprietary right is caused by a use of the goods other than as
specified by Alpha Orthotics or Alpha Orthotics did not foresee or when
the goods are modified by the customer or when they are used together
with products which have not been supplied by Alpha Orthotics.
11. Applicable law, place of performance, place of jurisdiction and severability clause
11.1
Any amendments or supplements to these General Terms & Conditions of Business shall require the written form. 11.2
All legal relations between Alpha Orthotics and the customer shall be
governed exclusively by the internal laws of the State of California
without regard to its conflict of law principles.
11.3
The customer
consents to the jurisdiction of the federal and state courts in the
State of California, United States with respect to enforce the
arbitration provision hereof, and the customer waives any claim of lack
of jurisdiction, improper venue or inconvenient forum. The customer
agrees that any controversy or claim relating the purchase of
merchandise or related services on this site, shall be resolved
exclusively by final and binding arbitration under the rules of the
American Arbitration Association then in effect, in its offices in San
Francisco, California of the Untied States. The language of the
arbitration shall be English. Judgment upon the arbitration award may
be entered in any court having jurisdiction.
11.4
Should any
individual provisions of these General Terms & Conditions of
Business or parts hereof be or become invalid in whole or in part, this
shall not affect the validity of the remaining provisions of these
General Terms & Conditions of Business. In place of the invalid
provision the parties shall insert a valid provision which from a
factual, legal and commercial perspective replicates as closely as
possible the invalid provision. The same procedure shall be followed
should these General Terms & Conditions of Business prove not to
contain a provision which they should contain. The customer agrees
that the General Terms and Conditions contained and referenced herein
represent the entire understanding between Alpha Orthotics and the
customer with respect to the order and purchase, and supersede any prior
or contemporaneous, conflicting or additional understanding or
communications, unless otherwise agreed by parties in writing and
signed by Alpha Orthotics.
Last updated March 28, 2018.
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